Bogh v. Beadles
| Decision Date | 01 February 1961 |
| Docket Number | No. 9820,9820 |
| Citation | 107 N.W.2d 342,79 S.D. 23 |
| Parties | Russell BOGH, Plaintiff and Respondent, v. Leon BEADLES and Fred Beadles, Defendants and Appellants. |
| Court | South Dakota Supreme Court |
Royhl, Benson & Beach, Huron, for defendants and appellants.
Keith B. Anderson, Huron, for plaintiff and respondent.
This action for property damage arose out of an intersection collision between an automobile owned and operated by plaintiff and an automobile owned by defendant Fred Beadles and driven by his son, defendant Leon Beadles. The defendants denied negligence, alleged contributory negligence on the part of the plaintiff and defendant Fred Beadles sought by counterclaim to recover judgment for damages caused to his automobile. The cause was tried to a jury and there was a verdict for the plaintiff against defendant Leon Beadles. Defendants appeal.
The accident occurred at the intersection of Fourth Street and Illinois Avenue in the City of Huron shortly after midnight on October 6, 1957. Neither street was an arterial highway and there were no signal lights or stop signs. Illinois Avenue is about fifty feet in width and the other street forty feet in width measuring from curb to curb. Plaintiff, thirty-two years of age, was driving his car west on Fourth Street. Leon Beadles, then fifteen years of age, was driving south on Illinois Avenue. The weather was clear and the streets were dry. Plaintiff approached the intersection on defendant's left. The cars collided in the northwest quadrant, each car having proceeded to the point of impact on its own side of the street. The Beadles car struck plaintiff's car on the right rear door and fender. Plaintiff's car spun around facing east and stopped near the north curb west of the intersection. The other car came to rest southwest of the point of impact.
The first paragraph of SDC 1960 Supp. 44.0318 relating to the right of way upon approaching an intersection provides: This is likewise the language of Section 16.0129 of the Revised Ordinances of the City of Huron.
Defendants contend that plaintiff as a matter of law was guilty of contributory negligence more than slight barring his recovery. Motion to dismiss the action as to defendant Fred Beadles was granted upon the ground that negligence, if any, on the part of his son was not imputable to him. Motions for directed verdict and judgment notwithstanding the verdict on the counterclaim were denied. Defendant Fred Beadles presents as error the ruling on these motions.
The issue of negligence or contributory negligence is ordinarily for the jury and it is only where the facts are not in dispute or of such nature that reasonable men could not differ that such issue becomes one for the court. Dwyer v. Christensen, 76 S.D. 201, 75 N.W.2d 650, 56 A.L.R.2d 734.
The right of way rule does not invariably give the driver on the right the unlimited privilege of approach and entry into an intersection. Smith v. Aspaas, 71 S.D. 111, 21 N.W.2d 878. The right is forfeited if the driver in such position is driving at an unlawful rate of speed. Defendant admitted that in the block north of the intersection he accelerated his speed from fifteen to thirty or thirty-five miles per hour and that he did not see plaintiff's car until it was directly in front of him. The city ordinance here applicable provided that any speed in excess of twenty miles per hour was unlawful.
Plaintiff's evidence is that he was driving at a speed of twenty miles per hour until he was about a half block away from the intersection. A slowly moving car signaling for a left turn preceded him into the intersection. When he was about two car lengths or twenty feet to the east of the east crosswalk of the intersection, plaintiff driving at a speed of four miles per hour looked to the north and saw the headlights of the Beadles car then approaching about a half block away. The block to the north of the intersection is 350 feet long. Looking to the south, plaintiff proceeded forward, accelerated his speed as he approached the east crosswalk and attained a speed of fifteen miles per hour when the front wheels of his car were approximately on the center line of the intersection. He estimated the speed of the Beadles car immediately prior to the impact at fifty miles per hour.
The case of Mills v. Armstrong, 70 S.D. 1, 13 N.W.2d 726, 727, is analogous. Defendant motorist in that case...
To continue reading
Request your trial
-
State v. Floody
...in a truthful manner? The answer is no. My position is as follows: Basically, a question of fact is for the jury. Bogh v. Beadles, 79 S.D. 23, 107 N.W.2d 342 (1961). It is not our function to resolve conflicts in the evidence, pass on the credibility of witnesses, or weigh the evidence. Suc......
-
Eischen v. Minnehaha County
...Thus, the trial court should have permitted the jury to gage the credibility of the witnesses and weigh the evidence. Bogh v. Beadles, 79 S.D. 23, 107 N.W.2d 342 (1961). The credibility of the witnesses was something for the jury to decide, not the trial court. When there is competent evide......
-
Byre v. City of Chamberlain
...to be in 100% conflict with the facts that the jury found. It is axiomatic that the jury resolves all fact questions. Bogh v. Beadles, 79 S.D. 23, 107 N.W.2d 342 (1961). A jury is entitled to accept one witness' version of the facts and reject another's. Lukens v. Zavadil, 281 N.W.2d 78 (S.......
-
Jennings v. Hodges
...usually given; however, where the facts do not show contributory negligence it is not error to refuse to instruct thereon. Bogh v. Beadles, 79 S.D. 23, 107 N.W.2d 342. As to assumption of risk the court gave a general instruction on the subject and there was no error in refusing to give def......